Arizona is widely recognized as the most permissive state in the country for public weapons possession. In 2010, then-Governor Jan Brewer famously removed all permitting requirements for public concealed carry of firearms, making Arizona only the third “constitutional carry” state in the nation. Also in 2010, and to much less fanfare, Arizona became the first state to prohibit local governments from enacting any regulations restricting the sale or possession of knives of any kind, including swords, maces, and other exotic blades. Today, Arizona remains the only state in the country with virtually no restrictions on the public concealed carry of any type of bladed weapon. In part owing to this deregulatory environment, as many as twelve percent of all Arizonans report publicly carrying a concealed deadly weapon on their person or in their vehicle. But these laws have also created confusion for Arizona police officers charged with protecting the public. For over a century, Arizona officers could justifiably initiate an investigatory stop of a publicly armed individual based on little more than a reasonable suspicion that such possession was unlawful. But in a state where a significant percentage of the population lawfully possesses weapons in public, Arizona police must now discern which lethal weapons carriers are law abiding citizens and which ones pose true criminal threats to the public. Increasing the confusion for Arizona law enforcement, the Ninth Circuit and Arizona Supreme Court have recently authored conflicting opinions regarding whether a lawfully stopped individual can be frisked solely because he is armed or whether he must also give the officer reasonable suspicion that he is “presently dangerous.” This Article examines three distinct aspects of Arizona law and policy as it relates to this growing confusion. First, it challenges the efficacy and constitutionality of Arizona’s “duty to inform” law, which seeks to clarify this reasonable suspicion quandary by requiring concealed weapons possessors to affirmatively disclose the presence of weapons to police officers when asked. As a matter of federal constitutional law, officers can only require citizens to cooperate with inquiries if reasonable suspicion already existed to justify the stop. In contrast, by requiring citizens to voluntarily disclose information to officers, “duty to inform” laws arguably place these encounters with law enforcement outside the traditional Terry v. Ohio stop context, thus rendering the encounter consensual and failing to solve the reasonable suspicion issue. Second, the Article considers the competing case law in Arizona regarding the “armed and dangerous” prong of stop and frisk for lawful gun carriers. The Arizona Supreme Court in State v. Serna held that lawful weapons carriers cannot automatically be considered dangerous for purposes of a protective frisk. The Ninth Circuit, in United States v. Orman, held otherwise, and focused on character
亚利桑那州被广泛认为是美国公众持有武器最宽松的州。2010年，时任州长简·布鲁尔取消了所有公开隐蔽携带枪支的许可要求，使亚利桑那州成为美国第三个“宪法允许携带”的州。同样是在2010年，亚利桑那州不那么高调地成为第一个禁止地方政府制定任何限制销售或拥有任何种类刀具的法规的州，包括剑、狼牙棒和其他外来刀片。今天，亚利桑那州仍然是美国唯一一个对公众隐蔽携带任何类型的有刃武器几乎没有限制的州。在某种程度上，由于这种放松管制的环境，多达12%的亚利桑那州人报告公开携带隐藏的致命武器在他们的个人或车辆。但这些法律也给负责保护公众的亚利桑那州警察造成了困惑。一个多世纪以来，亚利桑那州的警察只要有合理的怀疑公开持有武器是非法的，就可以合理地对公开持有武器的个人进行调查。但是，在一个相当大比例的人口在公共场合合法拥有武器的州，亚利桑那州警方现在必须辨别哪些携带致命武器的人是守法公民，哪些人对公众构成真正的犯罪威胁。第九巡回法院和亚利桑那州最高法院最近就合法拦截的个人是否可以仅仅因为他携带武器而被搜身，或者他是否必须让警官有理由怀疑他“目前很危险”，发表了相互矛盾的意见，这加剧了亚利桑那州执法部门的困惑。本文考察了亚利桑那州法律和政策的三个不同方面，因为它涉及到这种日益增长的混乱。首先，它挑战了亚利桑那州“告知义务”法律的有效性和合宪性，该法律试图通过要求隐藏武器持有者在被要求时肯定地向警察披露武器的存在来澄清这种合理怀疑的困境。根据联邦宪法，警察只有在已经存在合理怀疑的情况下才能要求公民配合调查。相比之下，通过要求公民自愿向官员披露信息，“告知义务”法律可以说将这些与执法部门的接触置于传统的特里诉俄亥俄州停止背景之外，从而使接触双方同意，未能解决合理怀疑问题。其次，该条款考虑了亚利桑那州关于对合法枪支携带者进行“武装和危险”拦截和搜身的竞争性判例法。亚利桑那州最高法院在州立诉塞尔纳案中认为，合法的武器携带者不能自动被认为是危险的，以进行保护性搜身。第九巡回法院在“美国诉奥曼案”(United States v. Orman)中持相反观点，并将重点放在亚利桑那州最高法院没有明确考虑的枪支所有权特征上。但这两起案件都涉及双方自愿的接触，而不是非自愿的调查。该条款调查了其他司法管辖区的判例法，以提供一种平衡的方法来对合法拦截、合法武装的亚利桑那州人进行搜身。第三，该条强调了与解决这些相互竞争的观点有关的政策考虑，以及亚利桑那州人在行使其法定所有权时的相互竞争利益，以及官员在面对公共武器运载者时保护自己和他人的相互竞争利益。在这样做的过程中，这篇文章首次在学术文献中探讨了警察拦截和搜身合法持枪者和警察拦截和搜身合法持刀者的经验，如果有的话，可以得出什么相似之处。
{"title":"Guns, Knives, and Swords: Policing a Heavily Armed Arizona","authors":"Shawn E. Fields","doi":"10.2139/SSRN.3355937","DOIUrl":"https://doi.org/10.2139/SSRN.3355937","url":null,"abstract":"Arizona is widely recognized as the most permissive state in the country for public weapons possession. In 2010, then-Governor Jan Brewer famously removed all permitting requirements for public concealed carry of firearms, making Arizona only the third “constitutional carry” state in the nation. Also in 2010, and to much less fanfare, Arizona became the first state to prohibit local governments from enacting any regulations restricting the sale or possession of knives of any kind, including swords, maces, and other exotic blades. Today, Arizona remains the only state in the country with virtually no restrictions on the public concealed carry of any type of bladed weapon. In part owing to this deregulatory environment, as many as twelve percent of all Arizonans report publicly carrying a concealed deadly weapon on their person or in their vehicle. \u0000 \u0000But these laws have also created confusion for Arizona police officers charged with protecting the public. For over a century, Arizona officers could justifiably initiate an investigatory stop of a publicly armed individual based on little more than a reasonable suspicion that such possession was unlawful. But in a state where a significant percentage of the population lawfully possesses weapons in public, Arizona police must now discern which lethal weapons carriers are law abiding citizens and which ones pose true criminal threats to the public. Increasing the confusion for Arizona law enforcement, the Ninth Circuit and Arizona Supreme Court have recently authored conflicting opinions regarding whether a lawfully stopped individual can be frisked solely because he is armed or whether he must also give the officer reasonable suspicion that he is “presently dangerous.” \u0000 \u0000This Article examines three distinct aspects of Arizona law and policy as it relates to this growing confusion. First, it challenges the efficacy and constitutionality of Arizona’s “duty to inform” law, which seeks to clarify this reasonable suspicion quandary by requiring concealed weapons possessors to affirmatively disclose the presence of weapons to police officers when asked. As a matter of federal constitutional law, officers can only require citizens to cooperate with inquiries if reasonable suspicion already existed to justify the stop. In contrast, by requiring citizens to voluntarily disclose information to officers, “duty to inform” laws arguably place these encounters with law enforcement outside the traditional Terry v. Ohio stop context, thus rendering the encounter consensual and failing to solve the reasonable suspicion issue. \u0000 \u0000Second, the Article considers the competing case law in Arizona regarding the “armed and dangerous” prong of stop and frisk for lawful gun carriers. The Arizona Supreme Court in State v. Serna held that lawful weapons carriers cannot automatically be considered dangerous for purposes of a protective frisk. The Ninth Circuit, in United States v. Orman, held otherwise, and \u0000focused on character","PeriodicalId":80553,"journal":{"name":"Arizona State law journal","volume":"10 1","pages":"505"},"PeriodicalIF":0.0,"publicationDate":"2018-12-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"88612743","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
A populist backlash around the world has targeted international law and legal institutions. Populists see international law as a device used by global elites to dominate policymaking and benefit themselves at the expense of the common people. This turn of events exposes the hollowness at the core of mainstream international law scholarship, for which the expansion of international law and the erosion of sovereignty have always been a forgone conclusion. But international law is dependent on public trust in technocratic rule-by-elites, which has been called into question by a series of international crises.
{"title":"Liberal Internationalism and the Populist Backlash","authors":"E. Posner","doi":"10.2139/SSRN.2898357","DOIUrl":"https://doi.org/10.2139/SSRN.2898357","url":null,"abstract":"A populist backlash around the world has targeted international law and legal institutions. Populists see international law as a device used by global elites to dominate policymaking and benefit themselves at the expense of the common people. This turn of events exposes the hollowness at the core of mainstream international law scholarship, for which the expansion of international law and the erosion of sovereignty have always been a forgone conclusion. But international law is dependent on public trust in technocratic rule-by-elites, which has been called into question by a series of international crises.","PeriodicalId":80553,"journal":{"name":"Arizona State law journal","volume":"16 1","pages":"795"},"PeriodicalIF":0.0,"publicationDate":"2017-01-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"79751895","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Is it legal to use Google Glass while driving? Most states ban texting while driving and a large number also forbid drivers from being able to see television and video screens. But do these statutes apply to Google Glass? Google advises users to check their states’ law and to “Read up and follow the law!” Yet, laws designed for a tangible world are very difficult to apply to virtual screens projected by futuristic wearable technology. In short order, however, police and prosecutors across the country will be called upon to apply outdated distracted driving laws to Google Glass. This article describes how the plain language of most distracted driving statutes is not broad enough to reach Google Glass. Moreover, even statutes that arguably forbid drivers from “using” Glass are practically unenforceable because drivers could easily claim the devices were turned off or that they were being used for lawful functions – such as phone calls or GPS directions – that are allowed under texting while driving statutes. The lack of a clear prohibition on Google Glass while driving is troublesome. Social science evidence demonstrates that using hands-free devices while driving creates “cognitive tunnel vision” that drastically reduces drivers’ mental focus on the road. After analyzing the nation’s distracted driving laws and reviewing the social science evidence, this article proposes a statutory framework for effectively banning Google Glass while driving.
{"title":"Google Glass While Driving","authors":"Adam M. Gershowitz","doi":"10.2139/SSRN.2478673","DOIUrl":"https://doi.org/10.2139/SSRN.2478673","url":null,"abstract":"Is it legal to use Google Glass while driving? Most states ban texting while driving and a large number also forbid drivers from being able to see television and video screens. But do these statutes apply to Google Glass? Google advises users to check their states’ law and to “Read up and follow the law!” Yet, laws designed for a tangible world are very difficult to apply to virtual screens projected by futuristic wearable technology. In short order, however, police and prosecutors across the country will be called upon to apply outdated distracted driving laws to Google Glass. This article describes how the plain language of most distracted driving statutes is not broad enough to reach Google Glass. Moreover, even statutes that arguably forbid drivers from “using” Glass are practically unenforceable because drivers could easily claim the devices were turned off or that they were being used for lawful functions – such as phone calls or GPS directions – that are allowed under texting while driving statutes. The lack of a clear prohibition on Google Glass while driving is troublesome. Social science evidence demonstrates that using hands-free devices while driving creates “cognitive tunnel vision” that drastically reduces drivers’ mental focus on the road. After analyzing the nation’s distracted driving laws and reviewing the social science evidence, this article proposes a statutory framework for effectively banning Google Glass while driving.","PeriodicalId":80553,"journal":{"name":"Arizona State law journal","volume":"55 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2014-08-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"87397854","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Complaints about lawyers’ ethics are commonplace. While it is surely the case that some attorneys deliberately choose to engage in misconduct, psychological research suggests a more complex story. Iit is not only “bad apples” who are unethical. Instead, ethical lapses can occur more easily and less intentionally than we might imagine. In this paper, we examine the ethical “blind spots,” slippery slopes, and “ethical fading” that may lead good people to behave badly. We then explore specific aspects of legal practice that can present particularly difficult challenges for lawyers given the nature of behavioral ethics - complex and ambiguous ethical rules and standards, agency relationships, the ethos of the adversarial system, the financial and temporal pressures of modern legal practice, positions or feelings of relative status or power, and cues or pressure from others. The psychology we present provides substantial insight into why attorneys sometimes behave unethically, why attorneys may have difficulty curbing or reporting the unethical conduct of their clients or fellow attorneys, and why it is often difficult for attorneys to see and learn from their own ethical missteps and the missteps of others. At the same time, the psychological research also provides insight into why attorneys are often able to resist substantial pressure to act unethically. We draw on the psychological research to make suggestions for how individual attorneys and legal employers can enhance their approach to ethics.
{"title":"Behavioral Legal Ethics","authors":"J. Robbennolt, Jean R. Sternlight","doi":"10.2139/SSRN.2248137","DOIUrl":"https://doi.org/10.2139/SSRN.2248137","url":null,"abstract":"Complaints about lawyers’ ethics are commonplace. While it is surely the case that some attorneys deliberately choose to engage in misconduct, psychological research suggests a more complex story. Iit is not only “bad apples” who are unethical. Instead, ethical lapses can occur more easily and less intentionally than we might imagine. In this paper, we examine the ethical “blind spots,” slippery slopes, and “ethical fading” that may lead good people to behave badly. We then explore specific aspects of legal practice that can present particularly difficult challenges for lawyers given the nature of behavioral ethics - complex and ambiguous ethical rules and standards, agency relationships, the ethos of the adversarial system, the financial and temporal pressures of modern legal practice, positions or feelings of relative status or power, and cues or pressure from others. The psychology we present provides substantial insight into why attorneys sometimes behave unethically, why attorneys may have difficulty curbing or reporting the unethical conduct of their clients or fellow attorneys, and why it is often difficult for attorneys to see and learn from their own ethical missteps and the missteps of others. At the same time, the psychological research also provides insight into why attorneys are often able to resist substantial pressure to act unethically. We draw on the psychological research to make suggestions for how individual attorneys and legal employers can enhance their approach to ethics.","PeriodicalId":80553,"journal":{"name":"Arizona State law journal","volume":"10 1","pages":"1107-1182"},"PeriodicalIF":0.0,"publicationDate":"2013-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"89806093","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This paper explores the adoption of best practices for the admission and graduation of undocumented students as lawyers and promoting their integration into the legal profession. Law schools are already both knowingly and unknowingly admitting and graduating undocumented students. It is our contention in this paper, after careful analysis, that no law precludes law schools from admitting undocumented students, offering them in-state tuition or other types of private and even public financial aid in states that permit it, or allowing them to participate fully in the law schools’ educational opportunities. We acknowledge that there are tensions around the decision to educate undocumented law students. Law schools should worry about the appropriateness of graduating lawyers with high debt burdens and no prospects for paid employment inside the United States. For some, the admission and graduation of undocumented law students may also raise other types of resource allocation or moral dilemmas, such as how and whether a person’s immigration status should bear upon determination of character and fitness of practice law. This piece aims to be precise and nuanced about the legal, practical, and moral challenges law schools face in enrolling undocumented students. The paper focuses on three main areas. First, the paper examines the application of the American Bar Association (“ABA”) 2011-2012 Standards and Rules of Procedure for Approval of Law Schools (the “Standards”) and American Association of Law Schools minimum requirements to the education of undocumented law students. The paper also considers state rules on bar admission and examines impediments in some states to sitting for the bar examination. Second, the paper outlines current laws governing financial aid for undocumented students and their eligibility to participate in educational experiential opportunities while in law school. This section also puts to rest the misperception that an educational institution may be held liable under the Immigration and Nationality Act’s harboring provisions for admitting undocumented student. Finally, the paper outlines best practices for guiding undocumented law students from admission through beginning their legal career.
{"title":"Raising the Bar: Law Schools and Legal Institutions Leading to Educate Undocumented Students","authors":"R. Aldana, B. Lyon, K. McKanders","doi":"10.2139/SSRN.1988396","DOIUrl":"https://doi.org/10.2139/SSRN.1988396","url":null,"abstract":"This paper explores the adoption of best practices for the admission and graduation of undocumented students as lawyers and promoting their integration into the legal profession. Law schools are already both knowingly and unknowingly admitting and graduating undocumented students. It is our contention in this paper, after careful analysis, that no law precludes law schools from admitting undocumented students, offering them in-state tuition or other types of private and even public financial aid in states that permit it, or allowing them to participate fully in the law schools’ educational opportunities. We acknowledge that there are tensions around the decision to educate undocumented law students. Law schools should worry about the appropriateness of graduating lawyers with high debt burdens and no prospects for paid employment inside the United States. For some, the admission and graduation of undocumented law students may also raise other types of resource allocation or moral dilemmas, such as how and whether a person’s immigration status should bear upon determination of character and fitness of practice law. This piece aims to be precise and nuanced about the legal, practical, and moral challenges law schools face in enrolling undocumented students. The paper focuses on three main areas. First, the paper examines the application of the American Bar Association (“ABA”) 2011-2012 Standards and Rules of Procedure for Approval of Law Schools (the “Standards”) and American Association of Law Schools minimum requirements to the education of undocumented law students. The paper also considers state rules on bar admission and examines impediments in some states to sitting for the bar examination. Second, the paper outlines current laws governing financial aid for undocumented students and their eligibility to participate in educational experiential opportunities while in law school. This section also puts to rest the misperception that an educational institution may be held liable under the Immigration and Nationality Act’s harboring provisions for admitting undocumented student. Finally, the paper outlines best practices for guiding undocumented law students from admission through beginning their legal career.","PeriodicalId":80553,"journal":{"name":"Arizona State law journal","volume":"18 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2012-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"81219707","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In spite of a communications revolution that has given the public access to new media in new places, the revolution has been stopped cold at the steps to the U.S. federal courthouse. The question whether to allow television cameras in federal courtrooms has aroused strong passions on both sides, and Congress keeps threatening to settle the debate and permit cameras in federal courts. Proponents of cameras in federal courtrooms focus mainly on the need to educate the public and to make judges accountable, whereas opponents focus predominantly on the ways in which cameras can affect participants’ behavior and compromise the dignity of the court and the fairness of the trial.In this article, I lay out the traditional arguments that proponents and opponents make to justify their positions, but I also examine the weaknesses of each side, and the underlying motivations and aspirations, which neither side ever articulates. I explore the unintended consequences of cameras in the courtroom because institutions are not static. For example, cameras might contribute to a growing trend, which I call the “vanishing oral argument,” in which appellate courts do away with oral argument and simply decide the case on the briefs. I also look at other contexts in which cameras have been introduced, such as Supreme Court nomination hearings and congressional speeches, and draw lessons from cameras in these other settings.In the end, the debate entails competing values and perspectives. Proponents primarily take a “public-centered” view of courts and focus on protecting public access to court proceedings, whereas opponents primarily take a “participant-centered” view and consider the participants in the proceeding and how they are affected by cameras. However, both perspectives can be accommodated, at least to some extent. Federal courts should post transcripts and audio recordings of court proceedings online, but stop short of permitting cameras in the courtroom. Federal judges need to consider the power of the image, the omnipresence of the camera, the spread of images via the Web, and the current lack of a “technology etiquette” that will guide the use of courtroom images on the Web. Until that etiquette develops, federal judges should take incremental steps to make courts more accessible, but should not allow cameras in federal courts, particularly in federal district courts.
{"title":"The Conundrum of Cameras in the Courtroom","authors":"Nancy S. Marder","doi":"10.2139/SSRN.1969115","DOIUrl":"https://doi.org/10.2139/SSRN.1969115","url":null,"abstract":"In spite of a communications revolution that has given the public access to new media in new places, the revolution has been stopped cold at the steps to the U.S. federal courthouse. The question whether to allow television cameras in federal courtrooms has aroused strong passions on both sides, and Congress keeps threatening to settle the debate and permit cameras in federal courts. Proponents of cameras in federal courtrooms focus mainly on the need to educate the public and to make judges accountable, whereas opponents focus predominantly on the ways in which cameras can affect participants’ behavior and compromise the dignity of the court and the fairness of the trial.In this article, I lay out the traditional arguments that proponents and opponents make to justify their positions, but I also examine the weaknesses of each side, and the underlying motivations and aspirations, which neither side ever articulates. I explore the unintended consequences of cameras in the courtroom because institutions are not static. For example, cameras might contribute to a growing trend, which I call the “vanishing oral argument,” in which appellate courts do away with oral argument and simply decide the case on the briefs. I also look at other contexts in which cameras have been introduced, such as Supreme Court nomination hearings and congressional speeches, and draw lessons from cameras in these other settings.In the end, the debate entails competing values and perspectives. Proponents primarily take a “public-centered” view of courts and focus on protecting public access to court proceedings, whereas opponents primarily take a “participant-centered” view and consider the participants in the proceeding and how they are affected by cameras. However, both perspectives can be accommodated, at least to some extent. Federal courts should post transcripts and audio recordings of court proceedings online, but stop short of permitting cameras in the courtroom. Federal judges need to consider the power of the image, the omnipresence of the camera, the spread of images via the Web, and the current lack of a “technology etiquette” that will guide the use of courtroom images on the Web. Until that etiquette develops, federal judges should take incremental steps to make courts more accessible, but should not allow cameras in federal courts, particularly in federal district courts.","PeriodicalId":80553,"journal":{"name":"Arizona State law journal","volume":"33 1","pages":"1489"},"PeriodicalIF":0.0,"publicationDate":"2011-12-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"89608319","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The United States is plagued by the problem of mass imprisonment, with its prison population having risen by 500 percent in the last three decades. Because the overwhelming majority of criminal cases are resolved through plea bargaining, there is room for prosecutors to reduce mass imprisonment by exercising their wide discretion. At present, prosecutors likely do not give much consideration to the overcrowding of America's jails and prisons when making their plea bargain offers. However, if prosecutors were regularly advised of such overcrowding they might offer marginally lower sentences across the board. For instance, a prosecutor who typically offers a first-time drug offender a twenty-month sentence might instead agree to an eighteen-month plea bargain if she were aware that prisons were overcrowded and incarceration rates were on the rise. A rich body of social psychology literature supports the view that informing prosecutors about mass imprisonment might cause them to offer lower sentences. Legislatures have an incentive to enact such a proposal because a reduction in incarceration would reduce the already huge and escalating costs of criminal corrections. At the same time, because legislatures would simply be instructing that prosecutors be advised of the scale of imprisonment, and not specifically advocating lower sentences, there would be no danger of legislators appearing "soft on crime."
{"title":"An Informational Approach to the Mass Imprisonment Problem","authors":"Adam M. Gershowitz","doi":"10.2139/SSRN.1004517","DOIUrl":"https://doi.org/10.2139/SSRN.1004517","url":null,"abstract":"The United States is plagued by the problem of mass imprisonment, with its prison population having risen by 500 percent in the last three decades. Because the overwhelming majority of criminal cases are resolved through plea bargaining, there is room for prosecutors to reduce mass imprisonment by exercising their wide discretion. At present, prosecutors likely do not give much consideration to the overcrowding of America's jails and prisons when making their plea bargain offers. However, if prosecutors were regularly advised of such overcrowding they might offer marginally lower sentences across the board. For instance, a prosecutor who typically offers a first-time drug offender a twenty-month sentence might instead agree to an eighteen-month plea bargain if she were aware that prisons were overcrowded and incarceration rates were on the rise. A rich body of social psychology literature supports the view that informing prosecutors about mass imprisonment might cause them to offer lower sentences. Legislatures have an incentive to enact such a proposal because a reduction in incarceration would reduce the already huge and escalating costs of criminal corrections. At the same time, because legislatures would simply be instructing that prosecutors be advised of the scale of imprisonment, and not specifically advocating lower sentences, there would be no danger of legislators appearing \"soft on crime.\"","PeriodicalId":80553,"journal":{"name":"Arizona State law journal","volume":"58 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2007-08-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"79310467","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The U.S. Patent and Trademark Office has been rejecting an increasing number of patent applications in the area of computer-related arts for lack of statutory subject matter under 35 U.S.C. ? 101. Despite the broad definitions of patentable subject matter provided by the Constitution, Patent Act, and Supreme Court, the examining corps of the Patent Office has at various times in the past grafted additional requirements onto the ? 101 determination, including the mental steps inquiry, the machine implementation requirement, the tangible result requirement, and most recently the requirement that the invention be within the technological arts. In an effort to clarify the official Patent Office position on the issue of statutory subject matter in the computer-related arts, an expanded panel of the Board of Patent Appeals and Interferences recently quashed the notion of a separate technological arts inquiry, and the Patent Office subsequently issued interim Guidelines for examination of patent applications for patentable subject matter, paying particular attention to computer-related inventions. The issue is not as complex as the Patent Office's activity suggests. Instead, this paper will demonstrate that the Patent Office is trying to kill an ant with an elephant gun. I will first explain why the question of patentable subject matter for computer-related inventions should be viewed as an ant, or perhaps an anthill. Second, I will explain why the Patent Office's examination Guidelines approach the problem of software patents with a rather unnecessary elephant gun. The examining corps, and even some commentators, often use ? 101 rejections as a way to avoid tackling other policy or practical issues that should be handled through other means. A more interesting and appropriate way to look at these subject matter rejections is as proxies for inquiries that should more appropriately be made under other statutory patentability requirements. Although the Guidelines have explicitly removed the various tests added by the examining corps from the examination analysis, there still remain unnecessary layers of inquiry bound to lead to unsupported rejections. By firing these tests at statutory subject matter, the Patent Office is truly firing an elephant gun to kill an ant. The only way to protect computer-related inventions is to disarm the Patent Office and remove any computer-related invention-specific inquiry from the determination of patentable subject matter.
{"title":"Ants, Elephant Guns, and Statutory Subject Matter","authors":"K. Osenga","doi":"10.2139/SSRN.955889","DOIUrl":"https://doi.org/10.2139/SSRN.955889","url":null,"abstract":"The U.S. Patent and Trademark Office has been rejecting an increasing number of patent applications in the area of computer-related arts for lack of statutory subject matter under 35 U.S.C. ? 101. Despite the broad definitions of patentable subject matter provided by the Constitution, Patent Act, and Supreme Court, the examining corps of the Patent Office has at various times in the past grafted additional requirements onto the ? 101 determination, including the mental steps inquiry, the machine implementation requirement, the tangible result requirement, and most recently the requirement that the invention be within the technological arts. In an effort to clarify the official Patent Office position on the issue of statutory subject matter in the computer-related arts, an expanded panel of the Board of Patent Appeals and Interferences recently quashed the notion of a separate technological arts inquiry, and the Patent Office subsequently issued interim Guidelines for examination of patent applications for patentable subject matter, paying particular attention to computer-related inventions. The issue is not as complex as the Patent Office's activity suggests. Instead, this paper will demonstrate that the Patent Office is trying to kill an ant with an elephant gun. I will first explain why the question of patentable subject matter for computer-related inventions should be viewed as an ant, or perhaps an anthill. Second, I will explain why the Patent Office's examination Guidelines approach the problem of software patents with a rather unnecessary elephant gun. The examining corps, and even some commentators, often use ? 101 rejections as a way to avoid tackling other policy or practical issues that should be handled through other means. A more interesting and appropriate way to look at these subject matter rejections is as proxies for inquiries that should more appropriately be made under other statutory patentability requirements. Although the Guidelines have explicitly removed the various tests added by the examining corps from the examination analysis, there still remain unnecessary layers of inquiry bound to lead to unsupported rejections. By firing these tests at statutory subject matter, the Patent Office is truly firing an elephant gun to kill an ant. The only way to protect computer-related inventions is to disarm the Patent Office and remove any computer-related invention-specific inquiry from the determination of patentable subject matter.","PeriodicalId":80553,"journal":{"name":"Arizona State law journal","volume":"39 1","pages":"1087"},"PeriodicalIF":0.0,"publicationDate":"2007-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"85960003","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The power to punish treason against the U.S. conflicts with the First Amendment freedoms of speech and of the press. Far from a question of mere theory, that conflict threatens to chill public dissent to the War on Terrorism. The government has already demonstrated its willingness to punish treasonous expression. After World War II, the United States won several prosecutions against citizens who had engaged in propaganda on behalf of the Axis powers. Today, critics of the War on Terrorism likewise face accusations of treason. Under the law of treasonous expression developed following World War II, those accusations could credibly support prosecutions. Any such prosecutions could win convictions, moreover, unless courts narrow the law of treasonous expression to satisfy the First Amendment. That potential clash between the power to punish treason and our freedoms of expression has, thanks to advances in communications technologies, become a matter of everyday concern. In terms of abstract doctrine, the law of treason condemns anyone who owes allegiance to the U.S., who adheres to U.S. enemies, and who gives them aid and comfort by an overt act to which two witnesses testify. As courts have applied that doctrine, however, it threatens any citizen or resident of the U.S. who publicly expresses disloyal sentiments. The Internet has made it cheap, easy, and dangerous to publish such sentiments. It hosts many an expression that an eager prosecutor could cite both as proof of adherence to U.S. enemies - a subjective state of mind - and as proof of an overt act giving them aid and comfort - an objective fact to which any two of the expression's readers could testify. Even if no prosecutions for treason arise, the alarmingly broad yet ill-defined reach of the law of treason threatens to unconstitutionally chill innocent dissent. This paper details the scope of the law of treasonous expression, explains why technology threatens to bring that law into conflict with the First Amendment, and suggests a way to safely separate the power to punish treason from our freedoms of expression.
{"title":"Treason, Technology, and Freedom of Expression","authors":"T. Bell","doi":"10.2139/SSRN.680694","DOIUrl":"https://doi.org/10.2139/SSRN.680694","url":null,"abstract":"The power to punish treason against the U.S. conflicts with the First Amendment freedoms of speech and of the press. Far from a question of mere theory, that conflict threatens to chill public dissent to the War on Terrorism. The government has already demonstrated its willingness to punish treasonous expression. After World War II, the United States won several prosecutions against citizens who had engaged in propaganda on behalf of the Axis powers. Today, critics of the War on Terrorism likewise face accusations of treason. Under the law of treasonous expression developed following World War II, those accusations could credibly support prosecutions. Any such prosecutions could win convictions, moreover, unless courts narrow the law of treasonous expression to satisfy the First Amendment. That potential clash between the power to punish treason and our freedoms of expression has, thanks to advances in communications technologies, become a matter of everyday concern. In terms of abstract doctrine, the law of treason condemns anyone who owes allegiance to the U.S., who adheres to U.S. enemies, and who gives them aid and comfort by an overt act to which two witnesses testify. As courts have applied that doctrine, however, it threatens any citizen or resident of the U.S. who publicly expresses disloyal sentiments. The Internet has made it cheap, easy, and dangerous to publish such sentiments. It hosts many an expression that an eager prosecutor could cite both as proof of adherence to U.S. enemies - a subjective state of mind - and as proof of an overt act giving them aid and comfort - an objective fact to which any two of the expression's readers could testify. Even if no prosecutions for treason arise, the alarmingly broad yet ill-defined reach of the law of treason threatens to unconstitutionally chill innocent dissent. This paper details the scope of the law of treasonous expression, explains why technology threatens to bring that law into conflict with the First Amendment, and suggests a way to safely separate the power to punish treason from our freedoms of expression.","PeriodicalId":80553,"journal":{"name":"Arizona State law journal","volume":"367 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2005-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"82581989","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The global move towards a trade regime has been impeded by challenges of poverty and health crisis for the developing nations. Until now, the developed nations have touted the establishment of a trade regime as envisaged under TRIPS as the solution for the national challenges. This paper examines the effectiveness of TRIPS as a mechanism to move towards a trade regime. It argues that the patent policy in TRIPS cannot gear the world towards patent harmonization but can potentially adversely impact the developed nations and the post-world war trade structure. The impediments affecting the effectiveness of TRIPS as a harmonizing mechanism are identified to enable the chartering of a future strategy. This paper discusses the impact of the current WTO patent policy on the developed nation and the post-world war trade structure. The impediments affecting the effectiveness of TRIPS as a harmonizing mechanism are identified to enable the chartering of a future strategy. The paper distinguishes itself from other contributions on this subject by focusing on the impact on developed nations. The imminence for creating long-term strategies for harmonizing trade regimes is highlighted by the failure of TRIPS in pharmaceutical patents and the legitimization of the generic drug industry vide the Doha Declaration. Using India and Brazil as case studies, this paper emphasizes that future trade regimes should create enforceable contracts. The agenda should focus on empowering the third world to become trade partners rather than to merely use third world as a means to prevent international trade distortions. The flexibilities within the international intellectual property rules need to be fully explored to enable nations to use them as ingredients for economic development. The American patent regime itself embodies lessons in effective use of flexibilities to encourage industrial development. Solutions ranging from sectoral harmonization to integrating trade issues with other areas like health and environment should be fully explored. International policies furthering trade should pave a solution for developing nations to reconcile fundamental infrastructure issues. Global policies should dictate the need for sensitivity and awareness of national issues - an element lacking in TRIPS - to evolve economic changes affecting trade favorably. Taking account of and providing solution to issues that nations are bound to face in transitioning towards a global regime is the key to forge harmonization. In fulfilling international obligations, countries need to benefit nationally either economically or by solving key issues.
{"title":"Can't We All Get Along - The Case for a Workable Patent Model","authors":"S. Ragavan","doi":"10.2139/SSRN.360040","DOIUrl":"https://doi.org/10.2139/SSRN.360040","url":null,"abstract":"The global move towards a trade regime has been impeded by challenges of poverty and health crisis for the developing nations. Until now, the developed nations have touted the establishment of a trade regime as envisaged under TRIPS as the solution for the national challenges. This paper examines the effectiveness of TRIPS as a mechanism to move towards a trade regime. It argues that the patent policy in TRIPS cannot gear the world towards patent harmonization but can potentially adversely impact the developed nations and the post-world war trade structure. The impediments affecting the effectiveness of TRIPS as a harmonizing mechanism are identified to enable the chartering of a future strategy. This paper discusses the impact of the current WTO patent policy on the developed nation and the post-world war trade structure. The impediments affecting the effectiveness of TRIPS as a harmonizing mechanism are identified to enable the chartering of a future strategy. The paper distinguishes itself from other contributions on this subject by focusing on the impact on developed nations. The imminence for creating long-term strategies for harmonizing trade regimes is highlighted by the failure of TRIPS in pharmaceutical patents and the legitimization of the generic drug industry vide the Doha Declaration. Using India and Brazil as case studies, this paper emphasizes that future trade regimes should create enforceable contracts. The agenda should focus on empowering the third world to become trade partners rather than to merely use third world as a means to prevent international trade distortions. The flexibilities within the international intellectual property rules need to be fully explored to enable nations to use them as ingredients for economic development. The American patent regime itself embodies lessons in effective use of flexibilities to encourage industrial development. Solutions ranging from sectoral harmonization to integrating trade issues with other areas like health and environment should be fully explored. International policies furthering trade should pave a solution for developing nations to reconcile fundamental infrastructure issues. Global policies should dictate the need for sensitivity and awareness of national issues - an element lacking in TRIPS - to evolve economic changes affecting trade favorably. Taking account of and providing solution to issues that nations are bound to face in transitioning towards a global regime is the key to forge harmonization. In fulfilling international obligations, countries need to benefit nationally either economically or by solving key issues.","PeriodicalId":80553,"journal":{"name":"Arizona State law journal","volume":"17 1","pages":"117-185"},"PeriodicalIF":0.0,"publicationDate":"2003-02-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"86361784","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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